In a recent federal opinion, National Day Laborer Organizing Network v. Immigration & Customs Enforcement Agency, 2011 WL 381625 (S.D.N.Y. 2011), Judge Shira Scheindlin provided guidelines for production of electronically stored information (“ESI”) that may have substantial implications for the future of e-discovery. The opinion specifically dealt with how to produce metadata and the additional costs that may be imposed on a careless party. In National Day, the court recognized that “certain metadata” are inextricable from an electronic record and, consequently, that metadata managed by a government agency as part of an electronic record are “presumptively producible” under FOIA. This presumption applies unless the agency shows that the metadata are not “readily producible.” Logically, if courts can compel the government to produce metadata, litigants and recipients of information collection requests (“ICR”) will not be immune from the same protocols.
Pursuant to the Freedom of Information Act (“FOIA”), plaintiffs commenced an action against the United States Immigration and Customs Enforcement Agency, the Department of Homeland Security, the Federal Bureau of Investigation, and the Office of Legal Counsel. Plaintiffs sought records related to Secure Communities, a cooperative federalism program that utilizes state and local resources to enforce federal immigration law. Plaintiffs requested electronic text records, e-mails, spreadsheets, and other documents. However, the defendants produced the records in unsearchable PDF format, without any metadata, and without separating electronic documents from paper documents. Plaintiffs took issue with the format in which defendants produced the records claiming that the format was unusable. Accordingly, plaintiffs asked the court to compel the government to produce the records in a usable format along with any metadata.
The court granted plaintiffs’ request explaining that the defendants’ production had failed to comply with FOIA and Rule 34 of the Federal Rules of Civil Procedure. The plaintiffs, in pre-production correspondence, outlined the desired format for the production. The same correspondence also invited defendants to contact plaintiffs with any questions or concerns regarding the production. Defendants, however, never contacted the plaintiffs and blatantly ignored plaintiffs’ enumerated requests. Moreover, defendants violated Rule 34 by producing the records in a burdensome and unusable form. Because the plaintiffs did not specifically request metadata in their initial request, the court did not require defendants to re-produce all of the documents with metadata. The court did order defendants to re-produce all text records in static image single file format with attachments and all spreadsheets in native format. Defendants were also required to Bates stamp the re-production. In a footnote, the court stated that defendants would finance the entire re-production, rather than sharing the costs, for their failure to cooperate with opposing counsel and the Rules – a result worth noting.
In a separate section of the opinion, the court provided a list of required metadata fields that the government would have to include in all future productions and which applied to all forms of ESI. In another footnote, the court stated its belief that the listed fields were a minimum requirement that should apply to every production of ESI. Liberally construed, the result would encompass all e-discovery – a tremendous implication. For example, the requirement to include metadata could affect companies responding to Environmental Protection Agency ICRs and all federal litigation. In order to prevent unnecessary losses or liability, it is recommended that you contact an experienced attorney before engaging in any e-discovery or production of ESI.
For more information on e-discovery and responding to information collection requests, please contact any member of Taft’s Environmental Practice Group.